§ Police Advisory Boards for England and Wales and for Scotland
(3) Before making regulations under section 33 or section 35 of this Act, other than regulations to which subsection (4) of section 45 of this Act applies, the Secretary of State shall furnish a draft of the regulations to the Police Advisory Board for England and Wales, and take into consideration any representations made by that Board.
§ 7.39 p.m.
§ LORD MILVERTON moved to leave out subsections (1) and (2). The noble Lord said: With your Lordships' permission I will speak to Amendments 23 and 24 together. Clause 46 provides for the establishment of Police Advisory Boards which would supersede the existing Advisory Police Councils which were established under the Police Act, 1919. The purpose of the Police Advisory Board is to enable the Secretary of State to have in existence standing machinery through which he may be advised, in particular, of matters in respect of which he may make regulations other than 106 those matters of pay and conditions of service which are dealt with by the Police Council for Great Britain. No useful purpose would be served by the Police Advisory Boards, and the Amendments provide for an alternative method by which the Secretary of State can obtain informed advice.
§ Presumably the membership of the Boards for England and Wales would follow that of the existing Police Council for England and Wales and all the bodies representing the police authorities and the uniformed service would be invited to make nominations. In the opinion of the municipal corporations it is more satisfactory that the Secretary of State should consult those bodies direct rather than have standing Advisory Boards. When necessary he can set up ad hoc committees of their representatives, as he did in the case of the Committee on Higher Police Training even though this was formally constituted as a committee of the Police Council, and he can also call ad hoc meetings of representatives of all parties concerned in any particular matter. One reason for preferring the ad hoc basis is that it is more flexible. The appropriate persons can be chosen for each occasion, whereas members of the Advisory Board are normally appointed for a fixed period.
§ However, the main reason is that representatives on Advisory Boards speak for themselves as individuals knowledgeable about the matters under consideration, rather than as spokesmen for the bodies by whom they are appointed. It may be otherwise with the bodies representing the Service, but this is certainly the view of the municipal corporations and, I understand, of the county councils, themselves. It therefore appears that if the Secretary of State wishes to take the advice of these associations representing police authorities on matters which are appropriate for consideration by the proposed Advisory Boards, then he will also have to consult the associations in addition. This is the practice which has generally been followed, I believe, hitherto, but it seems to involve unnecessary effort unless the Home Secretary needs guidance independent of that offered by the bodies which represent police authorities and the Service. Also the local elected representatives who would be nominated for 107 the proposed Advisory Boards are men who have many claims on their time.
§ The effect of the Amendments proposed is, therefore, to provide for consultation direct between the Secretary of State and the representative bodies of the police authorities and of the uniformed service. The Amendment at line 42 is based on a precedent in Section 11 of the Police (Scotland) Act, 1956. Under this Act consultation is provided for alternatively through the Police Council for Scotland or in the way which has been proposed should be substituted now. I beg to move.
Page 25, line 30, leave out subsections (1) and (2).—(Lord Milverton.)
§ 7.43 p.m.
§ LORD DERWENT
The effect of these two Amendments is to delete the provision in Clause 46 for the establishment of Police Advisory Boards for England and Wales and for Scotland, and to provide that the regulations to be laid before a Police Advisory Board under Clause 46(3) shall, instead, be submitted in draft to the local authority and the police associations. May I say, first of all, that all the police representative associations support the establishment of these Advisory Boards as the successors of the Police Councils for which the Police Act, 1919, made provision. It is plainly right that the Secretary of State should have available to him a body fully representative of service and local authority opinion which he can consult on matters relating to the efficiency and development of the police service. The Association of Municipal Associations argue, as I understand the argument, that it is common practice in other fields of local government for a Minister to consult the Association direct, as the need arises. It is also the practice in the police field, and nobody has suggested for one moment that direct consultation should cease or that everything will necessarily be dealt with through the Advisory Boards.
As regards the Advisory Boards themselves, the Association of Municipal Corporations will have ample opportunity, in its police committee or otherwise, to consider any proposal to be placed before the Advisory Board so that, like any other organisation, it will be able to 108 instruct its representatives as to the line they are to take. The essential point is that there should be a meeting of minds in the Advisory Board and that the members should have an opportunity of hearing the issue argued out by all concerned, by the various associations and federations. This is of great value to the Secretary of State and to the members, and the Secretary of State would have great difficulty in taking the more positive role envisaged under the Bill (and one must remember the Secretary of State is taking a much greater role under this Bill than before) if there were not a forum of this kind, the Advisory Board, in which new proposals can be discussed and tested in argument before a decision is taken. Of course it is always open to the representatives of any particular body to reserve that body's position, and the Secretary of State would take that into account. But he could not give an undertaking that in all matters put to the Advisory Boards separate discussions should be carried out with the local authority associations; there may certainly be cases where such discussions would be appropriate, but it would depend on the circumstances. I might add that under subsection (2) of Clause 46 the various associations will be consulted on the constitution and proceedings of the Advisory Boards.
Finally, the noble Lord is rather in favour of going back to Police Councils. May I say that the statutory Police Council for England and Wales has not met very frequently in recent years, and my right honourable friend has already made it clear, in another place and elsewhere, that he intends to make much greater use of the Advisory Board. In view of what I have said, hope that my noble friend will withdraw these Amendments, because I do not think that to go back to the old system would be wise or advantageous to any member of these Advisory Boards.
§ LORD MILVERTON
I thank the noble Lord for his careful and constructive reply. My Amendment was only an attempt to straighten out what seemed a cumbrous system and I do not wish to pursue it any further. I beg leave to withdraw the Amendment.
§ Amendment by leave, withdrawn.
§ Clause 46 agreed to.109
§ Clause 47 [Membership of trade unions]:
§ 7.50 p.m.
§ LORD MILVERTON moved, in the proviso in subsection (1), to leave out "chief officer of police" and to insert "police authority". The noble Lord said: Clause 47 deals with membership of trade unions by members of police forces, and provides in general that members of police forces should not be members of trade unions, the Police Federation being established to take care of the interests of members of police forces in relation to pay and conditions of service. It will be noted that there is a proviso to subsection (1) of Clause 47 to preserve the trade union membership of a person who is in membership at the time of joining the police force, if the chief officer of police agrees. A matter of this kind affecting the rights and liberties of the individual should not, in the Association of Municipal Corporations' opinion, be left to be decided by another officer of the force, albeit the chief constable, against whom there is no right of appeal. It is of sufficient importance to justify consideration by the police authority, and that is the object of this Amendment. I beg to move.
Page 26, line 8, leave out ("chief officer of police") and insert ("police authority")—(Lord Milverton.)
§ 7.50 p.m.
§ LORD DERWENT
The effect of this Amendment would be that the police authority, instead of the chief officer of police, would have the power to give consent for a police officer to remain a member of a trade union he joined before becoming a member of the force. I would point out to your Lordships that this power was given to chief officers, and not to police authorities, in the identical provision in the proviso to Section 2(1) of the Police Act, 1919, which first imposed a statutory prohibition on police membership of trade unions. There has been no alteration there.
The prohibition of police membership of trade unions was imposed in the interests of maintaining the impartiality of the constable as an officer of the law and in the interests of police discipline. The chief officer, as the authority with 110 the direction and control of the force and with the responsibility for its discipline, is therefore clearly the appropriate person to judge whether consent should be given for an officer to retain his union membership. In the Government's view it would be wrong to depart from the provision in the 1919 Act.
My noble friend said that there is no appeal. The reason why there is no appeal, and why there never has been an appeal against the chief constable's decision, is that the decision whether or not he can remain a member of a trade union is taken in the course of the main decision whether to accept the man as a candidate for the force at all. It is taken at the same time. The chief constable decides whether a man is to be appointed a constable. It is at that moment that the man, too, must decide whether to stay a member of the trade union. The whole thing is done as one operation. It is entirely within the chief constable's discretion. The present provisions about membership of unions have operated without difficulty, and, so far as I know, without controversy for over 40 years.
§ LORD MILVERTON
I thank the Minister for his reply. I do not wish to pursue this matter any further, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 47 agreed to.
§ Clause 48 [Liability for wrongful acts of constables]:
§ LORD MILVERTON moved, in subsection (1) to leave out "chief officer of police" and insert "police authority". The noble Lord said: Once more the view of the municipal corporations is that liability in respect of torts committed by constables—
§ LORD DERWENT
I am sorry to interrupt the noble Lord, but is he speaking to Amendments Nos. 26 to 34 inclusive? I think they are on the same point.
§ LORD MILVERTON
I beg your Lordships' pardon. I ought to have asked the permission of the Committee to speak in regard to Amendments Nos. 26 to 34; they are all tied up together. The view of the municipal corporations 111 in regard to torts committed by constables is that the responsibility should be placed upon the police authority for any police area, and not upon the chief officer of police. These Amendments are all designed to make that provision accordingly: that liability should be placed upon the police authority and not upon the chief officer of police. It was the recommendation of the Royal Commission, following the evidence which it received from a number of bodies and from Professor Wade of Cambridge University.
In a footnote at page 65 of their Report, the Commission refer to the suggestion put to them that liability should attach to the chief constable. They do not indicate the source of this suggestion; nor do they adduce reasons for their statement that they think such an arrangement is open to objection. However, the Association of Municipal Corporations is strongly of the opinion that the arrangement is open to objection, and for these reasons: that the clause as worded would leave the conduct of proceedings in the hands of the chief constable, which is not at all satisfactory when damages or costs are awarded against a chief constable and will have to be paid out of the police fund. Since the police authority are liable to pay, they should surely have control over the conduct of proceedings.
It may be that in many cases the chief constable would ask the clerk of the police authority to act for him, but he would not necessarily make this request. A chief constable may instruct a solicitor and engage leading counsel without any reference to the police authority. In any event, the clerk may not wish to act for the chief constable; and, indeed, the police authority may not wish him to act. It will come about, therefore, that an action could be settled, with damages met out of the police authority funds, although the police authority had taken no part in arriving at the settlement.
This matter was raised in Committee in another place, and the Home Secretary stressed that the chief constable would be indemnified from the police funds only if a settlement was approved by the police authority. The inference, of course, was that a chief constable 112 would, out of prudence, consult the police authority before arranging a settlement. But if he failed to do so, or he did so at too late a stage in negotiations, the police authority would obviously be reluctant to make him pay the extreme penalty of personally bearing the damages; and if the matter went to court, anyway, the police authority would have no option but to pay damages awarded, even though the chief constable might not have handled the case as the police authority, on the advice of their clerk, might have wished.
The Home Secretary also suggested in another place that it was more appropriate that the chief constable should be vicariously liable because he, unlike the police authority, was entitled to give orders to police officers. This argument is a theoretical one which I suggest carries less weight than the practical considerations which I have just mentioned. In any event, there are limitations even to the extent to which the chief constable can give police officers orders, because the latter are independent in their capacity as law enforcing officers of the Crown. I beg to move.
Page 26, line 23, leave out ("chief officer of police") and insert ("police authority").—(Lord Milverton.)
§ LORD DERWENT
Clause 48(1) makes the chief officer of police vicariously liable for the wrongful acts of police officers. I agree with my noble friend that the Amendments would instead—as recommended by the Royal Commission—put this liability on the police authority. The Government consider that it should attach to the chief officer, and I hope to be able to satisfy my noble friend that that is the right way of dealing with it.
In considering whether the chief officer or the police authority should be liable, it is necessary to bear in mind the nature of the liability. At present a police officer is in law alone responsible for his own wrongful acts. Of course, he exercises independent functions by virtue of his office—that is the present position—whereas where there is the ordinary master and servant relationship in other walks of life the employer is vicariously liable for his employees' torts committed in the 113 course of their employment. In such a case, the employer, rather than the employee, is usually sued.
Where the alleged tort arises directly out of instructions the employer has given to the employee, or otherwise in the course of his employment, the employer is obviously the right person to defend the action. He is the person to keep an eye on the employee's conduct, because the employee is his servant and subject to his control. That is the ordinary position. In the case of police officers, the chief officer of police comes much closer than the police authority to being the employer in this sense (although under the Bill a police officer will remain an independent officer of the Crown and no master or servant relationship will exist.) The officer is under the chief officer's direction and control, in the same way as, with an employer and employee, the employee is under his employer's direction and control, and the police authority cannot give the constable any orders. In the Government's view, it follows from those provisions that the chief officer of police. as the person having the direction and control of the force, should be vicariously liable for wrongful acts committed by members of the force. This is the effect of Clause 48.
The Bill has been carefully drawn to ensure that the chief officer will be indemnified from the police fund for any damages which he agrees to pay to the complainant only if the settlement is approved by the police authority. The police fund will therefore be liable for the chief constable's damages only where the amount has been approved by the police authority or awarded by the court. Moreover, I would add that there is no known recent case under the present arrangements where a police authority has refused to meet, administratively, the costs and damages of a defendant police officer in circumstances for which there would be vicarious liability under the clause. There has not been vicarious liability before, but there has been no case given against a police officer where these costs and damages have not been paid. In view of what I have said, I hope I have persuaded my noble friend that, in spite of what the Royal Commission said, 114 the Government have taken the right course in this matter.
§ LORD MILVERTON
I thank the Minister for his courteous and lucid explanation of the reason why he cannot accept these Amendments. I should even like to thank him for the consistent negative which he has maintained so steadfastly and so well. Therefore, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 48 agreed to.
§ LORD DERWENT
As we have now reached an important and perhaps lengthy Amendment, this will no doubt be a suitable moment to break off.
§ House resumed.